DENVER
03/08/2012 01:58 pm ET

Colorado Ballot Transparency Review Involves County Clerks, Colorado Courts, State Leglislators

Colorado's Secretary of State Scott Gessler (recently nicknamed the "honey badger" in homage to a sassy viral video), oft laments the negative media coverage he receives for his contentious practices (but apparently doesn't care -- see "honey badger" above).

After the Colorado Court of Appeals ruled in September that electronic images of ballots should be a matter of public record, in the next several months, while Gessler should expect more time in the spotlight, this go around he may not be directly responsible for drawing the attention.

The ruling, in response to a lawsuit from a 2009 Aspen mayoral candidate, addressed discrepancies between electronically tallied votes and ballots counted by humans. According to The Aspen Times, Marilyn Marks, the mayoral candidate who originally filed the suit, rested the case on the Colorado Open Records Act (CORA), which states "all public records shall be open for inspection by any person at reasonable times, except as provided ... by law."

The city of Aspen, unhappy with the lower court's decision, requested the Colorado Supreme Court take on the case. The Denver Post reports the court's decision on whether or not to hear the suit may take several months.

In the meantime, Colorado lawmakers hope to resolve the issue with Senate Bill 12-155. The legislation, sponsored by Senators Rollie Heath and Jean White, and Representatives Carole Murray and Lois Court in the House, sets forth a series of guidelines for the public review of ballots.

Among the more notable rules is a clause passing on all costs to the person requesting records, mandates for redacting personally identifiable information, limits on the size of voting populations ballots can be requested from, and time-frames during which ballots can be requested.

Both the Colorado County Clerks Association (CCCA) and Marks provided advice on the legislation, but the CCCA, despite supporting it, likely still has reservations.

"To put something into play that potentially could reveal how anyone in my county voted is of concern to me," Scott Doyle, the group's president, told CBS5 before the bill was drafted. "The clerk said no to opening up the ballots just for investigation that way, and so ... Secretary [Gessler] took the clerk to court and the judge awarded the Secretary."

Marks, meanwhile, opposes the legislation, telling The Aspen Times it could muddy the rules for a recount process, make recounts dramatically more expensive, and add to the workload of already overburdened county clerks.

While ballots are anonymous by law, clerks fear it wouldn't be difficult to determine how particular people in less populated districts voted. This in turn could be used for voter intimidation in future elections. "Today's ruling has removed the curtain from our voting booths," the clerks said in a statement to the Denver Post in November. "It turns our private decisions into political footballs that can, and will, be sought by advocates and election strategists."

Article 7, Section 8 of the Colorado Constitution states that "no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it. The election officers shall be sworn or affirmed not to inquire or disclose how any elector shall have voted." Further complicating matters, Section 8 ends with an allowance for the use of ballot-counting machines in the state, but only if "secrecy in voting is preserved."

flickr photo via Nadya Peek

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